To speak the truth

So The Legal Genealogist heads off again this morning, at yet another oh-dark-thirty, to fulfill her civic duty as a prospective juror.

Use of the word “prospective” is, of course, deliberate, since there ain’t no way anybody’s letting me on this jury.2

I was wrong about how yesterday would be “sitting around for hours in a cold, drafty room on hard, uncushioned chairs.” The chairs are now cushioned… barely… and for nearly two hours yesterday afternoon I ended up standing in the back of a courtroom while a very careful and very deliberate judge conducted a very careful and very deliberate and very very s-l-o-w voir dire.

And what’s a voir dire? I’m so glad you asked.

Because, frankly, even if you didn’t ask, I’m gonna answer anyway, because I’m gonna have to be part of one today, and besides it’s more cool legal geek terminology that you’ll run across often in older reported cases and court records.

The term itself is legal French, and means “to speak the truth.”3 And its most common meaning generally back when trials started to be used (as opposed to, say, trial by battle) was an inquiry of a witness to determine whether the witness had some interest in the outcome of the case. If he did, he wasn’t allowed to testify. A 1764 English dictionary, for example, defined voir dire as “in law, a term used where … it is prayed upon a trial at law that the witness may on oath speak the truth, whether he shall get or lose by the matter in controversy; and in case it appears that he is unconcerned and disinterested, his testimony is allowed, otherwise it is not.”4

Even as late as 1891, when Henry Campbell Black first published his A Dictionary of Law, it had much the same generally accepted meaning: “This phrase denotes the preliminary examination which the court may make of one presented as a witness, where his competency, interest, etc., is objected to.”5

Yet that isn’t all it meant, even in the early days. Even in the 1760s, when William Blackstone was publishing his groundbreaking Commentaries on the Law of England, the term was also used to describe an inquiry of a juror about the juror’s ability to sit fairly in a case: “A juror may himself be examined on oath of voir dire, veritatem dicere, with regard to such causes of challenge, as are not to his dishonour or discredit; but not with regard to any crime, or anything which tends to his disgrace or disadvantage.”6 In other words, a juror could be asked about prejudices or biases that would disqualify him as a juror.

Now, to be sure, Blackstone also commented on the use of voir dire to inquire of a witness to disclose the witness’ interest in the outcome.7 And that was by far the more common use of the term. In fact, the very first court opinion I can find in the United States that refers to a voir dire of a juror, instead of a voir dire of a witness, is a 1794 New Jersey case where only the headnote to the case — and not the court opinion itself — mentioned a juror who, when challenged, was “sworn on his voir dire.”8

From the earliest reported American cases to the beginning of 1850, there were only 50 reported opinions in all of the state courts that mentioned the term voir dire in the context of an inquiry of a juror. Between 1 January 1850 and 31 December 1899, there were 742 such reported opinions. And in 2012 alone, there were 929 reported state cases using the term that way.

So what exactly is a voir dire of a juror? It’s the series of questions asked of a juror, usually by the judge but sometimes by the lawyers, designed to expose any prejudices, biases or other matters that might impair the juror’s ability to decide the case fairly and impartially. What kinds of things disqualified a juror, and what kinds of things the juror could be asked about, have changed over time. In 1805 Tennessee, for example, it was perfectly okay for a juror to have formed an opinion about a case as long as he hadn’t voiced that opinion to anyone else.9 And take a look at the limits in Blackstone’s day — a juror couldn’t be asked about “any crime, or anything which tends to his disgrace or disadvantage.”10

But today, in one New Jersey courtroom, “For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath.”11 The questions must “probe the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially.”12

While “intrusive questions, which unnecessarily invade the privacy interest of jurors, should be avoided,”13 every juror is asked a wide variety of questions about knowledge of the case, the area where the events took place, family or personal relationships with police officers and more, so that any possible biases can be disclosed…

And so that the defense attorneys will know that one juror — that one, standing in the back there — used to be a prosecutor…

I mean really. It’s a criminal case, for cryin’ out loud, and I’m a former prosecutor. Even if I don’t get bounced for cause — and there’s, oh, about a 0.000001% chance that I won’t — one of the defense attorneys is bouncing me off this case with what’s called a peremptory challenge. That’s the right either side has to dump somebody just because. ↩

The last time I was called to jury duty, I sat about till after lunch and just as I was starting to think I was home-free, they called my name. About 40 of us were taken up stairs to the court room where we were handed numbered cards. The judge and attorneys proceeded to ask us questions such as, “Have you or any close relatives or friends ever been in jail?,” “Have you or any close relatives or friends ever been arrested?,” “Have you or any close relatives every taken illegal drugs?,” “Have you ever been arrested for drunk driving?” We were to raise the cards if our answers were “yes.” After a few of these it became apparent to me that I, unlike most in the room, had not had an interesting life.

Needless to say, the jury service was interesting. I served as chair and it really was a good citizen experience of only a couple of days.

Glad you had a chance to see the process and see it work, Emily. If there was a realistic chance that I would ever actually sit as a juror, I wouldn’t mind the every-three-years trek to the courthouse. (This year, at least, I got to see a new “You the Juror” film the state Bar Association made, with a good friend who’s now a high-ranking judge doing the introductory remarks.) But since there really isn’t any chance that I will serve (one side or the other is bound to bounce me in just about every kind of case), it’s awfully frustrating.

I went through the process as a prospective juror a couple of years ago; the judge quizzed each of us separately. She looked at my info, looked at me, and stated the odd name of the town I was born in, her intonation making a big verbal question mark. I politely told her that I was only born there–I didn’t give the town its goofy name. I ended up empaneled, and after several days we were a hung jury. It was very stressful to spend all that time trying to work through disagreements about the evidence and what it meant, but my fellow jurors were a good bunch. Glad I did it, but glad it’s three years before they can call me back! [Those not empaneled had their sheets of info destroyed afterwards; I can't remember if the same happened for those of us who ended up on the jury.]

At what point do the questions beome too intrusive? Ok, they might ask me if I know the defendant. But do they need to know if I’d ever been a defendant myself?

I’ve read about questionaires for prospective jurors at major trials (O J Simpson,or such?) that seemed to go far beyond the basics. What publications do I subscribe to, what organizations I belong to, …

When can I tell them it’s none of their business?

I’m sure that if I did, (a) I’d be immediately be excused to go home early, and/or (b) thrown in the clink for contempt.

I’m not sure exactly where the line is drawn, Bob, but think about it: don’t you think the State is entitled to know if you or someone in your family had been prosecuted by the same prosecutor’s office in another courtroom down the hall? Don’t you think that fact might have biased you for or against the prosecutor’s office? And what you read and what organizations you belong to may tend to show your political and philosophical views, and those may be relevant in a particular case.